Friday, June 26, 2009

﻿Sotomayor is good progressive court pick

﻿President Obama is to be congratulated for his nomination of 2nd Circuit Judge Sonia Sotomayor to the U.S. Supreme Court.

Judge Sotomayor’s record of decisions is encouraging. The only question mark is the absence of a record on abortion rights. Some have raised the prospect that, as a Hispanic Catholic, Sotomayor could actually provide the decisive vote to overturn Roe v. Wade. It wouldn’t be the first time a president’s court pick backfired. However, the strong endorsement given to Sotomayor’s candidacy by women’s organizations that are dedicated to protecting abortion rights gives me confidence that Sotomayor is on board. While she may well bob and weave and avoid questions on the subject at her confirmation hearing, I am confident that the women’s groups would not have backed her without convincing assurances of where she stands. They can (and presumable did) get candid responses that mere senators cannot.

But the best insight to Sotomayor’s potential was in her taped remarks in which she candidly admitted appellate courts’ role in shaping public policy. It was clear as soon as the vacancy occurred that Obama understood the court’s potential for long-term impact in this regard. The President explained that he wanted someone who had empathy and who'd temper the court's decisions with a concern for the downtrodden, the powerless and the voiceless. A court with a majority of like-minded justices could grasp the opportunity to create progressive policy that elected officials can’t risk implementing because of fear of possible voter backlash. Sotomayor gets it.

The court’s have almost always had progressives’ backs during the past generation or so, but now is the time and the opportunity for the Supreme Court to lead the way in cementing progressive legislative gains in place, immunizing them from attempts by future, less progressive Congresses and presidents to repeal them or even water them down. A court that is sensitive to outcomes and their impact on the disadvantaged will not let minor technicalities get in the way of necessary progress. While today’s President and Congress can implement reforms like universal health care, tomorrow’s courts can protect them from excessive reaction from future legislators, or even over-zealous populist ballot initiatives, by recognizing the reforms as the constitutional rights that they ought to be. The court can transform today’s new legislative innovations intotomorrow’s irrevocable entitlements. Lock in the change!

Thus, in replacing Justice Souter, Sotomayor will do more than merely replace one reliable progressive vote with another. She is positioned to lead the charge as soon as one of the five conservative justices leaves the court, enabling Obama to appoint another progressive justice to change the court’s balance of power. Judge Sotomayor has demonstrated that she understands these dynamics.